Monday, July 27, 2009

Jury selection consumes first day of Sony v. Tenenbaum

BY MARC BOURGEOIS

Almost the entirety of day one of the Sony v. Tenenbaum trial was devoted to jury selection. Opening statements will begin tomorrow at 9:00a.m. My updates for this trial will likely be limited to end of day wrap-ups as I am not permitted to bring any electronic devices into the courthouse, much less the courtroom, as I lack the needed credentials to do so.

The morning began with a very brief reading of Judge Gertner's order on the summary judgment motion that was entered early in the morning. She also stated that any constitutional questions raised by the parties in regard to damages would be a question saved for post trial, if and when there is a damage award.

The parties then discussed timing for each side to present their case, as the judge has announced that the trial should last one week. Judge Gertner stated that she wanted the trial to move expeditiously, but would not impose specific time limits on either side. She wants to have the case to the jury by the end of the week, but deliberation could go to next week.

Prof. Nesson then asked the court about whether or not the jury would be instructed on the range of damages as is stated in the copyright act, and stated he would like the jury instruction not to include the specific range, but rather ask that the jury if it awards damages simply be instructed to award damages that are just. Cites Feltner v. Columbia as his authority for this instruction. Plaintiffs object and Judge Gertner states that she will take the issue under advisement and rule before the opening statements, as Professor Nesson has indicated that the form of the instruction will play in to how he presents his opening.

Professor Nesson then stated two other objections, he would like to modify the geography of the courtroom to better present the defense to the jury, and the issue of Debbie Rosenbaum participating in the case. The courtroom was slightly modified with the position of the defense counsel table, and Ms. Rosenbaum is permitted to sit at the counsel table and assist Professor Nesson.

The jury selection voir dire then began. The voir dire went very quickly with the group in opening court, with several jurors being excused for their inability to sit on the case due to unresolvable scheduling issues. No one claims to have heard, read, or seen anything about the case and no one claims to know any parties or witnesses to the case. The selection then proceeded in an adjacent courtroom with voir dire by the parties, one juror at a time, without the presence of the remainder of the jury.

This process lasted until about 4:15pm until a panel of 16 was selected, and each side was allowed 3 peremptory challenges, leaving a total of 10 jurors to sit on the case. After the jurors were selected they were sworn in and asked to come back tomorrow morning at 9:00am for opening statements.

Parties then brought up some issues of their concern prior to opening statements. Plaintiffs do not wish for Professor Nesson to being up certain issues that were raised in voir dire that they do not believe are relevant to the case. Some of these issues include his representation of Tenenbaum pro bono, references to terms more appropriate to a criminal proceeding, his personal choice of wardrobe, and Joel's (as opposed to both parties') right to a jury. Judge Gertner agrees with Plaintiffs.

The Plaintiffs also bring up the use of demonstrative exhibits in opening statements. Plaintiffs indicate they do not plan to use any demonstrative exhibits in their opening statement, but ask to know if Defendant does. Professor Nesson states that he does have two. One is in image of the Necker Cube. The other is a box of styrofoam, to which he intends to liken the image of an album and intends to show breaking into pieces along with the advent of the internet.

Plaintiffs object to these demonstrations, but Judge Gertner overrules and explains that the opening statement must have relevance to the testimony that witnesses will provide, but gives license for counsel to present how they choose. What these demonstratives will mean won't be found out until tomorrow.

Judge Gertner then denies Defendant's proposed jury instruction not listing the statutory range. The range will be available to the jury.

Judge Gertner brought up the issue of the innocent infringer defense. There was then some discussion between the parties, but the defense will not be allowed in this case because it was not asserted early enough in the case.

Judge Gertner then gave an order regarding the testimony which will be allowed by Johan Pouwelse. He will be allowed to testify as an expert with regards to the times of appearance of Napster, iTunes, and other peer-to-peer related services. He will also be able to testify as to alternative methodologies to those employed by Dr. Jacobson. He will not be allowed to testify to anything relating to the marketplace for music or anything else related to economics.

The day ended with Judge Gertner encouraging the parties to move the case quickly. She specifically stated that she didn't see the need for the MediaSentry witness, as there isn't an issue as to the fact that their investigation led to the correct person. Mr. Reynolds for the Plaintiffs argued that there were other issues to which MediaSentry would testify about, such as about what exactly was uploaded or downloaded.

Plaintiffs then offered for the defense the list of the first three witnesses they will call tomorrow, which are G. Wade Leak (Sony), Chris Connelly (MediaSentry), and Mark Matteo (Cox Communications)



Docket entry for first day:
Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Jury Trial held on 7/27/2009. Voir Dire begins; 10 Juror's selected and sworn; openings and evidence to begin on Tues 7/28/09 at 9:00am, court adjourned. (lobby conference held re: media/list of jury pool) (Court Reporter: O'hara.)(Attorneys present: Atty Reynolds, Pariser, Cloherty, Burton, Oppenheim, Nesson, Kamholtz, Feinberg) (Molloy, Maryellen)



[Ed. note. I cannot for the life of me understand why the Judge is deciding at this time what the jury instruction will allow in terms of statutory damages. How can she determine that, without seeing what actual damages have been shown?

Also it sounds like she's decided to allow a free for all on the opening statements, so the RIAA lawyers will talk about how their business model is hurting and it's because of all of those "pirates" out there.

Sounds like I'm not getting wishes numbered 3 and 4 from my wish list.

Plus it sounds like the jury selection process was allowed to be the same kind of charade the Capitol v. Thomas process had been.

I think I'm going to be sick. -R.B.]


Commentary & discussion:
joelfightsback.com
Heise Online (German)
betanews

8 comments:

Anonymous said...

I'm a little confused as to why the plaintiffs want to put MediaSentry on the stand.

I think Judge Gertner was trying to do them a favor by allowing them to forgo that witness.

Once MediaSentry is up there and testifying on methodology, it opens a whole can of worms for defendant's counsel to hammer home the gross inadequacies in MediaSentry's forensic techniques.

Of course, knowing Nesson, he'll probably go off on the Mass. licensing issue instead of the methodology issue, but still...why put yourself in that position if you're the plaintiffs?

- JBC

Lior said...

"Judge Gertner ... specifically stated that she didn't see the need for the MediaSentry witness, as there isn't an issue as to the fact that their investigation led to the correct person. ... the Plaintiffs argued that there were other issues ... such as ... what exactly was uploaded or downloaded."

These look like issues the Defendant would like MS to testify about. He may have conceded to having run Kazaa software and being the user identified by MediaSentry, but I assume he hasn't conceded that actual downloads of copyrighted music took place from his computer?

David said...

Good to be hearing from you again Marc. I'm looking forward to reading the rest of your write ups. I hope this one goes better than the last one...

Anonymous said...

The day ended with Judge Gertner encouraging the parties to move the case quickly. She specifically stated that she didn't see the need for the MediaSentry witness, as there isn't an issue as to the fact that their investigation led to the correct person.

It looks to me as if Judge Gertner is treating Media Sentry "methods" as indisputable either as to sufficiency or as to infallibility, and thereby giving plaintiffs a free pass on what amounts to the heart of their case.

I hope to $DEITY someone can tell me either a) I'm dead wrong as to the significance of this decision, or b) I'm dreaming that I interpreted the above correctly, or c) both.

-Quiet Lurker

Ray Beckerman said...

IMHO there was nothing wrong with that ruling IN THIS CASE. Defendant admits that they found the guy they're looking for, so what difference does it make that MediaSentry's methods are sloppy and result in 50% or more false positives. This wasn't one of them.

Anonymous said...

"Defendant admits that they found the guy they're looking for, so what difference does it make that MediaSentry's methods are sloppy and result in 50% or more false positives."

As I see it, the plaintiffs are alleging that MediaSentry's data proves "distribution." Therefore, if Nesson can call into question the accuracy of MS' techniques, he can call into doubt distribution.

Without MediaSentry, the plaintiffs would have no case. Right?

- JBC

Anonymous said...

Quiet Lurker:

That Defendant was using P2P software is not in question, as you say. I speculate that perhaps the RIAA wants to use MediaSentry to help argue that Defendant was violating the distribution right. Or, to at least make the issue confusing, so the jury doesn't properly consider it (like in Thomas-Rasset).

Ray, I'm not sure what you meant, but for clarity's sake... The fact that MediaSentry has a high error rate means their methodology is always flawed, even if they "get it right" on occasion. As such, MediaSentry's evidence shouldn't even get them past the Doe stage, I believe. Now that we're past the Doe stage, though, there's little reason to stop.

XYZZY

Sebastien said...

"The day ended with Judge Gertner encouraging the parties to move the case quickly. She specifically stated that she didn't see the need for the MediaSentry witness, as there isn't an issue as to the fact that their investigation led to the correct person."

This to me is the most troubling oops, and apparently I'm not the only one to point this out :)

Well, but the validity of MS's forensic matters, or what was actually on the HD.

btw, I predict.. that they're going to award approx $85,000 per song. For a grand total of $2.55 million dollar award